Wednesday, December 11, 2013

The College Students, the Digital Camera and Unlawful Surveillance

-->

For reasons explained below, a jury convicted Michael
Piznarski of four counts of unlawful surveillance in violation of New YorkPenal Law § 250.45 and two counts of coercion in the second degree in violation
of New York Penal Law § 135.60, after which the judge who had the case
sentenced him to “a prison term of 1 to 3 years on the unlawful surveillance
conviction relating to victim A, concurrent nine-month sentences on the two
coercion convictions, and three concurrent one-year sentences for the unlawful
surveillance convictions relating to victim B.”People v. Piznarski, 2013 WL
6284001 (New York Supreme Court – Appellate Division 2013).

You can read more about the facts, about Piznarski and about the
charges in this case in the articles you can find here and here.

The Appellate Division begins its opinion by noting that
“[t]his case, apparently one of first impression, involves the application of
New York's unlawful surveillance statute . . . to the prosecution of a
defendant accused of video recording his sexual activities without the
knowledge or consent of the other participants.”People
v. Piznarski, supra.

According to the court, this is how the prosecution arose:

In the fall of 2009, [Piznarski] and
victim A, both college students attending the same
university, began dating. In March 2010, [Piznarski] used his digital camera to
secretly record victim A performing oral sex on him while they were in the
bedroom of his apartment. [He] and victim A broke up in August 2010 and,
although their relationship became strained, they continued to have contact
with one another following their return to school that
fall.

In September 2010, [Piznarski] informed victim A -- through a series
of Facebook messages
-- that he possessed the March video; he described the video's content and
insinuated that he was going to upload it to a website and identify victim A by
name. According to victim A, she was distraught over the messages and asked [him]
to delete the video.

Thereafter, on December 6, 2010, victim A went to [Piznarski’s]
apartment to discuss their relationship. Victim A claimed [he] became irate,
started berating her and ultimately threatened to disseminate the video and
humiliate her unless she agreed to have one final sexual encounter with him
while he recorded it. Victim A initially refused, but eventually acceded to [Piznarski’s]
demands and accompanied him into his bedroom.

While there, [he] began recording
victim A and disrobed her. Ultimately, victim A refused to have sexual
intercourse with [Piznarski], but instead acquiesced to [his] video recording
her while she performed oral sex on him.

After leaving [Piznarski’s] apartment,
victim A disclosed the incident to her roommate and reported it to campus
security and to the local police. The police obtained and executed a warrant to
search [his] apartment and retrieved a small digital camera, an ipod, an
external hard drive and a laptop computer.

A search of [Piznarski’s] laptop
revealed multiple video files, including videos of the March 2010 and December
2010 sexual encounters between victim A and [Piznarski]. A third file was also
found, which consisted of a video of [him] having sex with victim B. After
learning the identity of victim B, a police investigator contacted her and she
confirmed she had a sexual encounter with [Piznarski] in November 2010, but
denied knowing that he had recorded it.

People v. Piznarski,
supra.

Piznarski appealed, arguing, among other things that “the
unlawful surveillance statute does not apply to his conduct at issue here.” People v. Piznarski, supra.The court begins its analysis of this issue by noting that in 2003, “the
Legislature created the crime of unlawful surveillance in the second degree . .
. as part of a group of laws criminalizing video voyeurism.” People v. Piznarski, supra.It also pointed out that New York Penal Law § 250.45 provides as
follows:

`A person is guilty of unlawful
surveillance in the second degree when:

2. For his or her own, or another person's sexual
arousal or sexual gratification, he or she intentionally uses or installs . . .
an imaging device to surreptitiously view, broadcast or record a person dressing or
undressing or the sexual or other intimate parts of such person at a place and
time when such person has a reasonable expectation of privacy, without such
person's knowledge or consent; or

3. For no legitimate purpose, he or she
intentionally uses or installs . . . an imaging device to surreptitiously view,
broadcast or record a person in a bedroom . . . without such person's knowledge
or consent’.

People v. Piznarski,
supra. Piznarski was “convicted of
unlawful surveillance under § 250.45(3) with respect to victim A, and
under all three subdivisions with respect to victim B”.People
v. Piznarski, supra.

The Appellate Division was

unpersuaded by [Piznarski’s] argument
that the statute does not apply to the video recording of consensual sexual
activity by one of the parties involved in that activity -- even if the
recording is done without the knowledge or consent of the other party -- and
that the statute, instead, was intended to cover only the actions of a `PeepingTom.’

People v. Piznarski,
supra.It pointed out that there

is nothing in the plain language of the
statute that would preclude its application to the surreptitious recording of a
consensual sexual encounter by one of the participants. . . . In fact, the
statute's legislative history supports the conclusion that the Legislature
intended its application to defendant's conduct. . . . A memorandum in support
of the legislation described examples of various circumstances that
necessitated the enactment of this law, one of them being that:

`Women
throughout . . . New York State have unknowingly been videotaped while engaging
in sexual relations. Several women in this category have attempted to file
complaints alleging that their partner made these videotapes without their
knowledge or permission and are now showing them to friends and others, and
even posting the video footage on the Internet. These women were turned away without
a remedy’ (Governor's Memorandum approving L 2003, ch 69, 2003 N.Y. Legis Ann,
at 54).

Piznarski next argued that the statute was unconstitutionally
void for vagueness.People v. Piznarski, supra.As Wikipedia notes, “[i]n American constitutional
law, a statute is void for vagueness and
unenforceable if it is too vague for the average citizen to understand.” As
the Appellate Division noted, a

two-part test is used to determine
whether a statute is unconstitutionally vague; first, `the court must determine
whether the statute in question is sufficiently definite to give a person of
ordinary intelligence fair notice that his [or her] contemplated conduct is
forbidden by the statute’ and, `[s]econd, the court must determine whether the
enactment provides officials with clear standards for enforcement’.

Piznarski first challenged “the element of
surreptitiousness, arguing that it cannot be established in this case because
the camera was in plain view and both victims were aware of [his] presence in
the room.”People v. Piznarski, supra.The court did not agree, noting that

the statute prohibits the use of a
device to surreptitiously record, without limitation as to the location of the
device. . . . The term `surreptitious’ connotes a secretive act and is defined
as `obtained, done, made, etc., by stealth; secret or unauthorized;
clandestine[;] . . . acting in a stealthy way’ (Random House Unabridged
Dictionary [online version] ).

We discern nothing in the plain
language of the statute that restricts its application to circumstances in
which a defendant `spies’ on the victim from another location while the victim
is being recorded. Thus, in this case, the fact that both [Piznarski] and the
camera were visible in [his] room is immaterial, as [he] was using the
camera in a surreptitious manner. In
our view, inasmuch as the statute merely requires that the recording be
surreptitious, it provided fair notice to defendant that his actions were
prohibited. . . .

People v. Piznarski,
supra (emphasis in the original).

The court also rejected Piznarski’s argument that the
prosecution’s “interpretation of the element of surreptiousness impermissibly
renders superfluous the requirement that the recording be without a victim's
knowledge or consent.”People v. Piznarski, supra.The Appellate Division explained that

[i]n addition to establishing that
neither victim A nor victim B was aware of or consented to defendant recording
them while having sex, the People also tendered proof of actions by [Piznarski]
demonstrating that he used the camera surreptitiously. The video of victim B
shows that [he] began to record and position the camera on his desk while
victim B was outside his bedroom. Similarly, the March 2010 video of victim A
shows that [he] turned the camera on while victim A was performing oral sex and
had her eyes closed.

[He] did not call the victims'
attention to the camera or to the fact that he was recording them. This
evidence, which establishes the element of surreptitiousness, can be distinguished
from the evidence that proves the victims' lack of knowledge or consent and
gives it independent meaning and effect. . . . Considering that the
legislative history confirms that the statute was designed to proscribe this
type of conduct . . ., we do not find any element to be superfluous.

People v. Piznarski,
supra.

And the Appellate Division rejected Piznarski’s argument
that “the phrase `reasonable expectation of privacy’ is impermissibly vague. People v. Piznarski, supra.It noted that

[f]or purposes of Penal Law § 250.45(1)
and (2) -- which prohibit the surreptitious use of a device to record an
individual at `a place and time when such person has a reasonable expectation
of privacy’ -- such phrase is defined as encompassing circumstances in which `a
reasonable person would believe that he or she could fully disrobe in privacy’ (NewYork Penal Law § 250.40[1] ).

When a person knowingly undresses and
engages in sexual relations with another person, he or she should be able to do
so with the reasonable expectation that his or her actions are limited to that
particular time and place and that his or her naked body and/or sexual acts
will not be memorialized and/or repeatedly viewed at any time by the other
person present or by anyone else with whom that person decides to share the
recordings. . . . Stated another way, `reasonable people expect to be safe from
casual or hostile intrusion[ ] within a bedroom’ and, when `engaged in sexual
relations in a bedroom of a private home[,] expect to be free from
surveillance’ (Lewis v. LeGrow, 258 Mich.App 175, 670 N.W.2d 675
(Michigan Court of Appeals 2003)). It is of no moment that the unwanted
intrusion came from the person with whom the victim engaged in sex.

People v. Piznarski,
supra.

The court then explained that

[h]ere, victim B testified that she
believed she was engaging in a private sexual act with a person she trusted
and, had she been asked, she would not have agreed to be videotaped while
engaging in such act. In our view, the privacy element, when `[c]onsidered in
light of the clear and understandable elements of the criminal conduct,’ gave
defendant `adequate notice and law enforcement authorities sufficient guidance’
(People v. Stuart, 100 N.Y.2d 412, 797 N.E.2d 28 (Court of Appeals
of New York 2003))and we therefore
reject [Piznarski’s] vagueness challenge in this regard.

People v. Piznarski,
supra.

For these and other reasons, the Appellate Division affirmed
Piznarski’s conviction and sentences. People
v. Piznarski, supra.